David J. Barron*
Professors Post and Siegel’s very thoughtful response rightly points out that logic does not require progressive constitutional scholars to be either “Pro-Substantive” or “Anti-Court.” As they nicely put it: “one can have ‘substantive’ positions that require judicial deference, and, conversely, ‘substantive’ positions that demand vigorous judicial intervention.”1 But I disagree with their conclusion that the Anti-Court/Pro-Substantive dichotomy that I offer invites a choice between, as they put it, “substantive” and “process-based” theories of constitutional interpretation. That’s because the Anti-Court position is not merely any old “process-based” theory. It’s one that intentionally seeks to de-legitimate the judicial role in constitutional enforcement. Other progressive, process-based theories of constitutional interpretation did no such thing. John Hart Ely’s representation-reinforcement theory, for example, is widely regarded as a process-based theory of constitutional interpretation, but it was hardly Anti-Court.2 In fact, it was self-consciously designed to defend the Warren Court legacy that Post and Siegel suggest arises from the “Pro-Substantive” view of constitutionalism that they find wanting.
The division within progressive constitutional theory that I wish to highlight, therefore, is not between process and substance, or between law and politics, or any of the other usual dividing lines. It’s the division that has emerged over the last decade or so between those who think the progressive constitutional position is advanced through an approach to constitutionalism that is Anti-Court in orientation and those who do not. To be sure, only a few scholars have thus far signed on in full to the Anti-Court position, and even they have hedged.3 But it seems to me beyond question that an important strand of progressive constitutional critique over the last decade has taken a form that can be characterized as being Anti-Court in orientation, and that orientation has infected progressive constitutional critique more generally. In critiquing conservative courts, progressive constitutionalists have become very comfortable explaining why judges should not countermand democratic choices, but they have not evidenced a similar self-confidence in defending the proposition that sometimes they should.
That seems to me to be a worrisome trend — in part for a reason that Post and Siegel make vivid. Post and Siegel note the importance of articulating an idea of constitutionalism that can mobilize popular support, and they suggest that conservatives did just that in developing and embracing the theory of original intent. They then argue that progressives need to develop their own “vision of collective life able to generate constitutional claims of equal motive and authority, whether those claims sound in the register of restoration or redemption. When progressives have such a vision, it will arouse them to mobilize in defense of their understanding of national identity, which is to say in defense of their idea of the Constitution.”4 As I see it, those progressive constitutional scholars espousing the strongest forms of popular constitutionalism – or what I call the Anti-Court position – have been making great headway over the last ten years in making that vision a viable candidate for selection. In that respect, Post and Siegel’s suggestion that the real danger for progressive constitutionalism is that it will become locked into its ongoing romance with the Warren Court seems to me to be a misdiagnosis. As serious as that problem may be, we’ve now got a new one – the emerging romantic narrative of popular constitutionalism, which encourages suspicion of any theory of progressive constitutionalism that could actually defend judicial judgments made “in opposition to popular opinion.”5
* David Barron is Professor of Law at Harvard Law School.
[1] Robert Post & Reva Siegel, Democratic Constitutionalism: A Reply to Professor Barron, 1 HARV. L. POL’Y. REV. (Online) (2006), http://www.hlpronline.com/post_siegel_01.html.
[2] See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
[3] See, e.g., Larry D. Kramer, The Supreme Court, 2000 Term—Foreword: We the Court, 115 HARV. L. REV. 4, 126 (2001) (“I am not saying anything about whether the Court has done a good or a bad job in those areas in which it has retained a preeminent role.”) (cited in David J. Barron, What’s Wrong With Conservative Constitutionalism? Two Styles of Progressive Constitutional Critique and the Choice They Present, 1 HARV. L. POL’Y REV. (Online) (2006), http://www.hlpronline.com/barron_01.html).
[4] Post & Siegel, supra note 1 (citing Robert Post and Reva Siegel, Originalism as a Political Practice: The Right’s Living Constitution, 75 FORDHAM L. REV. (forthcoming 2006) (manuscript at 38, on file with authors)).
[5] Post & Siegel, supra note 1.